Ward v. State
| Docket Number: | 2003-KA-00286-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-24-2004 Opinion Author: Myers, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Felony DUI - Prior DUI offenses - Eyewitness statement - Present sense impression - M.R.E. 803(1) - Excited utterance - M.R.E. 803(2) - Breath test - Weight of evidence Judge(s) Concurring: King, C.J., Bridges, P.J., Lee, Chandler and Griffis, JJ. Non Participating Judge(s): Irving and Barnes, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-31-2003 Appealed from: Oktibbeha County Circuit Court Judge: Lee J. Howard Disposition: FELONY DUI, 3RD OFFENSE - SENTENCED TO SERVE A TERM OF 5 YEARS IN THE CUSTODY OF MDOC, SUCH SENTENCE SHALL NOT BE REDUCED OR SUSPENDED NOR SHALL SAID DEFENDANT BE ELIGIBLE FOR PAROLE OR PROBATION. District Attorney: Forrest Allgood Case Number: 2002-0231-CR1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | John L. Ward |
GARY GOODWIN |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JEAN SMITH VAUGHAN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Felony DUI - Prior DUI offenses - Eyewitness statement - Present sense impression - M.R.E. 803(1) - Excited utterance - M.R.E. 803(2) - Breath test - Weight of evidence |
| Summary of the Facts: | John Ward was convicted of felony driving under the influence and was sentenced to five years as a habitual offender. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Prior offenses Ward argues that evidence of his prior DUI convictions should have been precluded at his trial for felony DUI. A defendant is not entitled to bifurcate the guilt phase of his trial in order to prevent the jury from learning of his prior DUI convictions until after they had deliberated on the most recent DUI charge. In addition, Ward made no objection to the introduction of this evidence so the issue is waived. Issue 2: Eyewitness statement Ward argues that an eyewitness statement was inadmissible as a present sense impression because there was a lack of spontaneity and time for reflection and that the statement was inadmissible as an excited utterance because one driving through a roadblock and seeing two men switching drivers could not be so excited for such a statement to fit within the exception. A present sense impression is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter. An excited utterance is defined as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. The record indicates the Jeep that Ward was in came to an abrupt stop in the middle of Highway 82. The eyewitness was driving a truck on Highway 82 directly behind Ward and was forced to stop his vehicle once Ward stopped the Jeep. At most, it was a matter of seconds between the time the eyewitness observed Ward’s actions until he relayed what he saw to the officer. Therefore, the judge correctly determined the statement was a present sense impression under M.R.E. 803(1). Because the out of court statement was spontaneous and made only seconds after the events happened, it was also admissible as an excited utterance under M.R.E. 803(2). Issue 3: Breath test Ward argues that the court erred in allowing an officer to testify as to the results of a horizontal gaze-nystagmus test and the portable breath test. Ward failed to make a contemporaneous objection. Issue 4: Weight of evidence Ward argues that the jury’s verdict was against the overwhelming weight of evidence. Ward admitted to drinking liquor and beer on the night in question. He failed the horizontal gaze-nystagmus field test and the portable breath Intoxilizer test. Ward also failed the two field tests and the Intoxilizer test that were conducted at the Sheriff’s Department. The act of switching drivers was an indication to the jury that Ward was aware of his condition and sought to conceal it from the police. Any claim that Ward’s brother was driving the Jeep at all pertinent times that night was properly considered and resolved by the jury. |
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